In Twombly and then Iqbal, the Court recast Rule 8 into a plausibility standard. Under Iqbal, federal judges must evaluate whether each complaint contains sufficient factual matter “to state a claim to relief that is plausible on its face.” When doing so, Iqbal requires judges to draw on their “judicial experience and common sense.” Courts apply Iqbal at the pleading stage, before evidence has been presented, when judging the plausibility of all claims, including claims of discrimination by members of stereotyped groups.

Decades of social-psychological research suggest that, when judges deliberate on the plausibility of discrimination claims without evidence based on “common sense,” intuitions, stereotypes and implicit associations will likely affect their judgment. This article draws on this science and performs an empirical study showing that Iqbal has significantly increased the dismissal rate of Black plaintiffs’ claims of race discrimination in the workplace.

A statistical analysis of 212 cases examined judicial decision making at the pleading stage for Black plaintiffs’ claims of race discrimination in the workplace. Three studies demonstrate that the underpinnings of Iqbal are unsound. Study 1 shows that the dismissal rate increased from 20.0% pre-Twombly to 54.6% under Iqbal for these claims. Study 2 shows that the dismissal rate increased from 32.0% to 67.35% under Iqbal for these claims when Black plaintiffs were pro se. And finally, Study 3 shows that White and Black judges are applying Iqbal differently. White judges dismiss these claims at a higher rate (57.4%) than Black judges (28.6%). Study 3 suggests that it is 2.0 times more likely that a White judge, compared to a Black judge, will dismiss these claims.

In short, Iqbal rests on an inaccurate theory of judgment and decision making. As Roscoe Pound once observed there are, “distinctions between law in the books and law in action, . . . between legal theory and judicial administration. . .” It is hoped that by introducing the science behind judgment and decision making, stereotypes, and implicit associations, and by studying human nature in law, we will broaden our knowledge of how Iqbal has affected claims of discrimination by members of stereotyped groups.